Bangalore District Court
M/S.Blue Nile Advertising Pvt.Ltd vs M/S.Omni Visual Media Pvt.Ltd on 26 November, 2015
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY: (CCH.18)
Dated this 26th day of November, 2015.
Present
SMT.K.B.GEETHA, M.A., LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.6475/2009
PLAINTIFF : M/s.Blue Nile Advertising Pvt.Ltd.,
A Company incorporated under the
Companies Act, 1956,
Having its Regd.Office at No.28,
(O.P.H.), Jumma Masjid Road,
Bangalore-560 051.
Represented by its Directors.
1. Sri.S.Rajan Sharma
2. Sri.S.Deepak Sharma
(By Sri.Abhinav.R.,Advocate)
-VS-
DEFENDANTS : 1. M/s.Omni Visual Media Pvt.Ltd.,
A company incorporated under the
Companies Act, 1956,
Having its Regd.Office at No.99,
1st Floor, M.N.O. Complex,
Greams Road,
Chennai-600 006.
Having its branch office at
No.28, 2nd Floor, City Centre,
Church Street,
Bangalore-560 001.
Represented by its directors.
2 O.S.No.6475/2009
2. M/s.Dhoom Networks Pvt.Ltd.,
A company incorporated under the
Companies Act, 1956,
Having its Regd.Office at No.99,
1st Floor, M.N.O. Complex,
Greams Road,
Chennai-600 006.
Rep.by its Director Mr.K.Ilangovan.
3. M/s.Omni Agates Pvt.Ltd.,
A company incorporated under the
Companies Act, 1956,
Having its Regd.Office at No.99,
1st Floor, M.N.O. Complex,
Greams Road,
Chennai-600 006.
Rep.by its Director Mr.K.Ilangovan.
4. Mr.Ilangovan,
No.40/1, A 3M Avenue, Boat Club,
R.4 Puram, Chennai-600 028.
5. Mr.C.Ravikumar,
No.216/B, 5th Cross,
4th Block, Koramangala,
Bangalore-560 034.
(By Sri.TNR, Advocate)
Date of Institution of the suit : 9/10/2009
Nature of the Suit : Recovery of money.
Date of commencement of recording
of evidence : 22/6/2013
Date on which the Judgment was
pronounced : 26/11/2015
3 O.S.No.6475/2009
Year/s Month/s Day/s
Total Duration : 06 01 17
JUDGMENT
The plaintiff has filed this suit for recovery of Rs.59,23,439/- with interest at the rate of 16% p.a. from the date of suit till realization and damages at Rs.3,75,000/- p.m. from March 2010 till the removal of the LED/DDS System by the defendant; for court costs and for such other reliefs.
2. The case of plaintiff in nutshell is that the plaintiff is a company incorporated under the Companies Act having its office in Bangalore, has entered into an agreement with the owner of the property bearing No.28, 29, 30(O.P.H.) Jumma Masjid Road, Bangalore for erection of hoardings/neon/LEDs and has obtained the necessary permission from BBMP. 1st defendant is also a company incorporated under the Companies Act engaged in the business of providing "Digital out of home media services"
through customized digital display solutions by installing 4 O.S.No.6475/2009 digital display systems at its own cost with the sole purpose to communicate to customers and to generate revenue through advertisements. The branch office of the defendant company approached Plaintiff Company with a concept aiming to enhance its brand image in the market by installing a LED digital display screen of large size and also earn revenue by letting out the display space for various period of time. After negotiations, plaintiff and defendant entered into a Digital Display System Agreement dated 7/5/2008. By virtue of said agreement, defendant company would install, operate and maintain the Digital Display System at its own cost located at No.28, (OPH) Jumma Masjid Road, Bangalore-51. After entering into said agreement dated 7/5/2008, plaintiff has given necessary application to BBMP for obtaining permission to install Digital Display System. Corporation authorities raised a demand notice dtd:9/6/2008 calling upon the plaintiff company to remit the necessary licence fee. In pursuance of said notice, plaintiff company deposited Rs.55,890/- with BBMP and then on 12/6/2008 5 O.S.No.6475/2009 BBMP had given permission to display advertisements through LED/DDS on certain terms and conditions. It was informed to Defendant Company. Defendant Company wanted a clarification regarding property Number. Plaintiff has taken necessary clarification from corporation authorities through endorsement dtd:16/6/2008 that Door Nos.29 and 29, are 2 portions of the same building i.e., the numbers are given to 2 floors; therefore, LED/Digital Display System could be installed on the roof top of the property bearing No.29 and it was intimated to defendant through letter dtd:17/6/2008 which was served upon it. Thereafter, Defendant Company proceeded to obtain permission from police authorities and it started displaying advertisements through LED/DDS system. Defendant company agreed to pay plaintiff rent of Rs.3,75,000/- p.m. after deducting TDS. It was exclusive of service tax and other taxes which had to be payable and the rent had to commence after 90 days from the date of signing the agreement and thus, rent became payable from August 2008. It was the duty of Defendant Company to pay 6 O.S.No.6475/2009 electricity charges incurred during operation of LED/DDS as per the actual consumption. The defendant company has paid advance amount of Rs.11,25,000/- which is equivalent to 3 months rents. The Plaintiff Company has been raising invoices regularly as and when monthly rents fell due. Even after lapse of sufficient time, Defendant Company was not prompt and regular in paying rents and failed and neglected to pay rents. It was not adhered to the terms and conditions stipulated in the agreement. There were persistent breaches committed by Defendant Company particularly with regard to payment of rent, clearing electricity bills, etc. When it was brought to the notice of defendant company, that the arrears of rents had accumulated more than Rs.20,00,000/-, it made an ad-hoc payment of Rs.3,00,000/- in January 2009 and Rs.2,00,000/- in February 2009. The plaintiff company had set up its own hoarding by virtue of which they were displaying advertisements and it earned good name and reputation in the field of advertisement. Defendant utilized this and by making lucrative offers, had managed to 7 O.S.No.6475/2009 obtain the advertisement space for the purpose of displaying advertisements by means of LED/Digital Display System, but not paid the rentals regularly. Believing the words of defendant company, plaintiff company has removed its hoardings and gave space to defendant to set up LED/DDS system. Plaintiff Company at its own costs had got certain civil works carried out to enable installation of LED/DDS system. It also incurred expenditure towards consultation charges which was agreed to be reimbursed by the defendant company. Even after making persistent reminders, Defendant Company has not paid the rentals. Hence plaintiff company issued legal notice dtd:15/5/2009 calling upon it to pay Rs.28,13,140/- with interest at 16% p.a. and defendant company was notified that the agreement stood terminated and defendant company has to remove the LED/DDS system failing which, they are liable to pay damages at the rate of Rs.7,50,000/- p.m. This legal notice was served upon Defendant Company and it gave an untenable reply on 9/6/2009. It has taken false and 8 O.S.No.6475/2009 frivolous contentions in the reply notice. Hence, Plaintiff Company has issued communication to the defendant's counsel on 12/6/2009 by making their stand clear. Thereafter, it also sent a detailed rejoinder dtd:24/6/2009. There is no response from Defendant Company. Defendant Company failed and neglected to pay the electricity charges. This leads to disconnection of electricity supply for the entire building which caused immense hardship, and loss of reputation to the plaintiff. Ultimately, plaintiff company had paid and cleared the arrears of electricity charges of Rs.29,277/- and Rs.4,200/-. Plaintiff is restricting its claim to arrears of rents, electricity charges and legal notice charges. Defendant is liable to pay damage at Rs.7,50,000/- p.m. from the date of termination of contract till the date of removal of LED/DDS system. But plaintiff is restricting its claim to Rs.3,75,000/- p.m. which was accepted rate of rent prior to termination. Because, plaintiff is unable to pay court fee for Rs.7,50,000/- p.m. due to losses incurred by the plaintiff company on account of default committed 9 O.S.No.6475/2009 by defendant in paying rents. Hence defendants are due a sum of Rs.33,75,000/- from June 2009 to February 2010. Plaintiff is also entitled for future damages at the rate of Rs.3,75,000/- p.m. from March 2010 till actual removal of the LED/DDS system with interest at 16% p.a. as transaction between parties is commercial in nature. Suit is filed under Order XXXVII R.1 CPC as summary suit based on written contact. Defendant Nos.2 and 3 are promoted and managed by the same persons who have promoted and are managing the 1st defendant company. For the sake of convenience, defendant Nos.2 and 3 companies shall be referred as "Associate Companies".
Defendant Nos.4 and 5 are directors of defendant No.1 Company and also in the Associate Companies. Defendant company had made payment of advance amount of Rs.11,25,000/- and ad-hoc payment of Rs.5,00,000/- which was received from 3rd defendant company. Digital Display System was transferred to 3rd defendant company from 1st defendant and the system has also been insured in the name of 3rd defendant. Defendant Nos.4 and 5 10 O.S.No.6475/2009 have diverted all the funds of defendant No.1 to various other places including the Associate Companies and the defendant company is left as a mere Shell Company. Hence, all the defendants are jointly and severally liable to pay the suit claim. Hence, the suit for appropriate reliefs.
3. Defendant No.1 filed written statement wherein it denied the plaint averments in toto, except admitting agreement between parties and contended that plaintiff has suppressed the material facts. Plaintiff is engaged in advertisement business since long time. It provided footfalls in respect of site No.28, Jumma Masjid Road, Bangalore and assured good prospect in LED screen advertisement. Based on said footfalls and assurance of plaintiff, defendant entered into agreement on 7/5/2008. Plaintiff has agreed to lease space in property No.28, Jumma Masjid Road and to secure permission from BBMP and other agencies for installing and operating LED/DDS screen at its own cost and expenses. Defendant agreed to pay Rs.11,25,000/- in 2 installments and said amount will 11 O.S.No.6475/2009 be adjusted subsequently from the monthly rents after commencement of display of advertisement through LED. Accordingly, it paid Rs.6,00,000/- by way of D.D. at the time of agreement. Before operating LED screen, plaintiff has to fulfill obligations which are mandatory for commencement of operation of LED screen. Defendant also had certain obligations on its part like to install LED screen on the site and get ready for operation by completing installation work. In order to complete the obligations, lot of time was required as such parties agreed that the said period will be treated as Roll out date and there is no obligation on the defendant to pay any rent during said period. Plaintiff agreed not to demand any rent during Roll out date. Plaintiff also agreed to secure power supply from BESCOM with required capacity to operate LED screen at its own cost. Plaintiff agreed to provide required space for installation, operation and maintenance of back up generator since continuous power supply to LED screen was more essential. The lease period is for 10 years commencing from 7/5/2008 with an option 12 O.S.No.6475/2009 to extend for further period of 5 years. Plaintiff has obtained sanction from BBMP to install LED screen measuring 24 feet x 12 feet on 9/6/2008 in site No.29 and not in respect of site No.28. Hence, defendant asked plaintiff to rectify the mistake, but till today, plaintiff has not obtained permission to install LED screens at property No.28. Defendant agreed to pay 2nd installment of advance amount only after obtaining permission from BBMP and NOC from Police Department and other agencies. However, plaintiff demanded by its letters dtd:17/6/2008 and 1/7/2008 for balance amount based on the communication from BBMP dtd:16/6/2008. But plaintiff has not obtained NOC from Police Department, not applied for regular power supply from BESCOM. Police have given NOC only on 9/7/2008. Plaintiff also let out the space for hoarding to Country Club Ventures on barter system like securing membership of the Country Club to the Directors of plaintiff company and allowing hoarding space for the Country Club commencing from July 2008. Due to non- obtaining necessary permission from BBMP to erect LED 13 O.S.No.6475/2009 screens, non-receipt of NOC from Bangalore Police, defendant could not start erection work in site No.28. Finally plaintiff has removed its hoarding from site No.28 during last week of September 2008 and thus, cleared the hurdles for erection of LED screen. By that time, already sufficient time was lapsed, but commenced work only during last week of September 2008 that too, after removal of plaintiff's hoarding which was leased to Country Club. But plaintiff claims rentals from August 2008 alleging that Roll out date will be concluded by August 2008. Defendant had already informed plaintiff the required capacity of power supply to LED screen and direct plaintiff to obtain necessary power supply. Though plaintiff agreed to obtain power supply from BESCOM at its own costs, plaintiff failed to provide for back up power supply. Thus, defendant could not display its advertisement continuously. As such clients of defendant have cancelled their orders and caused huge loss in business to the tune of Rs.50,00,000/- to defendant. Plaintiff is responsible for said loss. Apart from business 14 O.S.No.6475/2009 loss, defendant was forced to spent amount frequently towards repair and maintenance of LED screen. Plaintiff applied for power supply only on 2/9/2008 to BESCOM and then BESCOM raised demand notice by its letter dtd:10/9/2008 calling upon plaintiff to deposit Rs.2,46,230/- as deposit. But plaintiff failed to comply with the said demand notice by not depositing the said amount. Hence, defendant was compelled to deposit said amount on 17/9/2008 through 4 D.Ds. and thus obtained regular power supply from BESCOM during last week of October 2008. BESCOM has granted temporary power supply on 25/10/2008. Only afterwards, defendant was able to telecast the third party advertisements from LED screen from 29/10/2008 onwards. Plaintiff admitted this in its letter dtd:17/11/2008 addressed to BBMP. Even then, plaintiff is demanding rent from August 2008 which is against the agreed terms of contract. Defendant spent huge capital expenditure for procuring LED screen. The basic cost is more than Rs.2,00,000/-. Defendant also spent Rs.18,00,000/- to Rs.20,00,000/- towards erecting 15 O.S.No.6475/2009 the structure for installation of LED screen. Considering the long period of lease, defendant invested huge amount with an anticipation of getting rewards, but without adhering to the terms of the agreement, plaintiff terminated the contract illegally and disconnected power supply to LED screen and thus, defendant compelled to stop telecasting advertisement from 1/5/2009. Plaintiff also started disconnecting power supply to LED screen during peak hours, because electrical panel board was under the control of plaintiff. Thus, there was financial disruption and business loss to the tune of Rs.50,00,000/- to the defendant. Plaintiff is liable to make goods the loss. Even though, there was frequent intervention by plaintiff; to have harmonious relationship, defendant paid Rs.5,00,000/- during subsistence of agreement period. Ignoring the good gesture shown by defendant, plaintiff is trying to canvas the financial incapacity of defendant. By abrupt removal of its hording, plaintiff prevented Country Club to continue its advertisement. Likewise, it also making untenable claims against defendants, though 16 O.S.No.6475/2009 plaintiff is aware about the frequent disconnection of power supply, the date of commencing of advertisement etc. Plaintiff split the rental amount into 2 parts just to suit its convenience to avoid payment to Government. Defendant is not liable to pay licence hiring charges. Parties can terminate the contract only by issuing 120 days clear notice to the defaulting parties, but without complying mandatory clause, plaintiff unilaterally by issuing legal notice dtd:15/5/2009 stating that the agreement is terminated. Plaintiff is not entitled for any reliefs. Defendant denied other allegations made in the plaint regarding rate of rent, whether it includes TDS or excludes TDS, etc. Defendant made counter-claim for Rs.50,00,000/- towards loss on account of cancellation of orders by its clients because of irregular power supply from plaintiff and also Rs.3,00,000/- towards repairs and maintenance of LED screen. But defendant is restricting its claim against plaintiff for a sum of Rs.15,00,000/- and also prayed for declaration that the plaintiff is not entitled to claim rent from 5th May 2009 till restoration of power 17 O.S.No.6475/2009 supply to LED screen, for interest at 16% p.a. and thus prayed for allowing the counter-claim and dismissal of suit with exemplary costs.
4. Defendant Nos.3 and 4 filed their written statement wherein they contended that the suit is not maintainable either in law or on fats. They contended that the plaintiff is engaged in advertisement business and provided space in respect of site No.28, Jumma Masjid Road, Bangalore for installation of LED screen measuring 20 feet x 20 feet to the 1st defendant. Plaintiff agreed to secure permission from BBMP and other agencies for installing and for operation of LED/DDS screen at its own cost and expenses. There was no contract between plaintiff and defendant No.3 & 4 and thus, they are not liable to pay the suit claim. Defendant No.3 is an independent company, defendant No.4 is the director of defendant No.3. They are not involved in the contract between plaintiff and 1st defendant. Defendant No.3 is carrying on business of electrical meter manufacturing and it is 18 O.S.No.6475/2009 entirely a different entity and no way concerned with the agreement between plaintiff and 1st defendant. Hence, the contractual agreement between plaintiff and 1st defendant cannot be enforceable against these defendants. Hence, prayed for dismissal of suit with exemplary costs.
5. Defendant Nos.3 & 4 filed their additional written statement after amendment of the plaint wherein they contended that in the initial stage, plaintiff sought only Rs.25,48,439/- as arrears of rent and then added new facts and thus, the reliefs sought are not maintainable. Again, defendant Nos.3 & 4 reiterated that defendant No.3 is an independent company and not connected to defendant Nos.1 and 2. It paid Rs.5,00,000/- only at the request of M/s.Omni Visual Media Pvt.Ltd. First defendant borrowed money from 3rd defendant and hence, made the advance payment. Defendant Nos.3 and 4 denied all other averments made in the plaint and amended plaint and hence, prayed for dismissal of suit with costs. 19 O.S.No.6475/2009
6. Plaintiff has filed rejoinder to the claim of defendants wherein plaintiff contended that the counter-claim is not maintainable. Plaintiff denied the contention that it has disconnected power supply to LED screen on 5/5/2009 or any other date. It further contended that it has not committed any breach of the terms of the agreement, but defendant No.1 has committed the same. The reliefs claimed in the counter-claim cannot be granted. Plaintiff denied all the averments made in the counter-claim and contended that court fee paid on counter-claim is not proper. Thus, counter claim is only a counter-blast to the suit. Plaintiff issued legal notice dtd:15/5/2009 calling upon the defendants to pay the various outstanding dues. Plaintiff contended that defendants stopped display of advertisement and switched off LED system. The reply notice dtd:9/6/2009 establishes that defendants could not run their LED display system and thus, made baseless allegations against plaintiff. The counter-claim is nothing but abuse of process of law. Hence, prayed for dismissal of counter-claim with exemplary costs.
20 O.S.No.6475/2009
7. From the above facts, the following issues were framed:-
ISSUES
1. Whether the plaintiff proves that defendant is liable to pay a sum of Rs.25,48,439/-?
2. Whether defendant proves that plaintiff has failed to comply the terms of the agreement dtd:7/5/2008?
3. Whether defendant proves that plaintiff is liable to pay counter-claim?
4. Whether the plaintiff is entitled for the decree sought?
5. What order or decree?
ADDITIONAL ISSUES (framed on 18/12/2010)
1. Whether the plaintiff is entitled for the damages as claimed?
2. Whether the Court fee paid by the defendant on his counter claim is insufficient?
3. To what order or decree?
ADDITIONAL ISSUE (framed on 3/9/2012) "Whether the defendants are jointly and severally liable to pay the suit claim as prayed for?"
8. On behalf of plaintiff, one of the directors of the plaintiff company is examined as PW-1, got marked 21 O.S.No.6475/2009 Ex.P.1 to Ex.P.31 and closed its side. On behalf of defendant Nos.3 & 4, General Manager of defendant No.3 Company is examined as D.W.1, got marked Ex.D.1 and closed their side. On behalf of defendant Nos.1 and 2, the authorized signatory of defendant No.1 is examined as D.W.1, got marked Ex.D.2 to Ex.D.17 and closed their side.
9. Heard arguments of both sides.
10. Findings of this court on the above issues are :-
Issue No.1:- Partly in Affirmative; Issue No.2:- In Negative;
Issue No.3:- In Negative;
Issue No.4:- Partly in Affirmative; Addl.Issue No.1 :- Partly in Affirmative;
(framed on 18/12/2010)
Addl.Issue No.2 :- In Negative;
(framed on 18/12/2010)
Addl.Issue :- Partly in Affirmative;
(framed on 3/9/2012)
22 O.S.No.6475/2009
Issue No.5 &
Addl.Issue No.3 :- As per the final order for the
(framed on 18/12/2010) following:-
REASONS
ISSUE No.1 to 3 & ADDITIONAL ISSUE No.1
(framed on 18/12/2010)
11. These issues are considered together as they require common discussion.
12. Admitted facts of the case are that plaintiff and defendant No.1 entered into an agreement dtd:7/5/2008 under which plaintiff agreed to lend the suit schedule property to defendant and defendant agreed to display Digital Display System in the said property for which defendant agreed to pay rent at Rs.3,75,000/- p.m.
13. Learned counsel for defendants vehemently submitted arguments that Ex.P.1 is insufficiently stamped and hence, this document is to be impounded and to refer it to D.C. for collection of duty and penalty. 23 O.S.No.6475/2009
14. In this regard, learned counsel for defendant Nos.1 to 4 relied on the citation reported in ILR 2013 Kar 2697 in "M/s.Archana Associates (R) v/s Agamathraya Maha Mandala (R)".
He relied on the another citation reported in AIR 2015 KAR 175 in "Smt.Savithramma.R.C. v/s M/s.Vijaya Bank & another" wherein, their Lordships held as under:-
"If the Judge does not act under S.34 of the Act, but the document is insufficiently stamped and admitted in evidence though objection regarding admissibility cannot be raised subsequently that does not take away his obligation to impound the document under S.33 of the Act. If the document is insufficiently stamped and if the Court has admitted such instrument in evidence without collecting duty and penalty, then the Judge shall proceed under S.33 of the Act and impound the document. After impounding the document, he shall proceed under S.37(2) of the Act and shall send the impounded instrument in original to the Deputy Commissioner to be dealt with under S.39 of the Act. Therefore, impounding the document should not be confused to admission of document without objection regarding admissibility or on such objection being taken after collecting the duty and penalty."24 O.S.No.6475/2009
15. Defendant's counsel further relied on the citation reported in AIR 2006 KAR 295 in "Smt.G.Kusuma Devi v/s Smt.Gowramma & others".
16. In all the above said citations, their Lordships clearly held that if any document is unregistered one, if it requires compulsory registration; then such documents cannot be looked into; it is further held that even if an insufficiently stamped document is marked without objection, the court shall impound it under S.33 of the Karnataka Stamp Act and refer the same to the D.C. for collection of duty and penalty as per S.37 of the said Act. Hence, before looking into merits of the suit, it is necessary to look into the sufficiency or insufficiency of Ex.P.1.
17. A.30 of the Karnataka Stamp Act deals with Stamp duty on Lease deed. As per Article 30(2) of the Karnataka Stamp Act, the stamp duty is to be payable in respect of lease of movable property. The plain reading of this provision made it very clear that the stamp duty paid 25 O.S.No.6475/2009 on Ex.P.1 is insufficient. Hence under S.33 of the Karnataka Stamp Act, the court can at any stage of the proceedings impound the document and as per the above ruling of the Hon'ble High Court of Karnataka reported in AIR 2015 KAR 175, after impounding the document, the court has to send impounded instrument in original to D.C. to be dealt with under S.39 of the Act. As per S.35 of the Karnataka Stamp Act, once instrument is admitted in evidence, the admissibility of such document cannot be questioned in the same suit or proceedings. Hence, this agreement as per Ex.P.1 is admissible in law, because, it is marked without any objection regarding stamp duty. Though it is admissible in law, the court is having duty bound to impound the document and refer it to D.C. for collection of duty and penalty. Hence, this document is to be looked into in this suit to know the terms and conditions between parties, but it is to be impounded and refer to D.C. for collection of duty and penalty. With this background, the facts of the suit are to be dealt with. 26 O.S.No.6475/2009
18. According to the agreement as per Ex.P.1, both parties shall made endeavor to implement the Roll Out date as on 7/5/2008 in accordance with the time lines listed in Annexure-J. According to Annexure-J, the time line is Roll Out date and both parties to complete formalities of agreement. The Roll Out date is defined in this agreement as per Ex.P.1. According to it, Roll Out date shall mean "the date on which DOOHM commences the display in Digital Display System and Display screen at the "Blue Nile Advertising Pvt. Ltd." Facilities/Buildings of Advertisements."
19. On perusal of the Roll Out date definition on page No.3 in the agreement, and as per other terms of the agreement, it is crystal clear that both parties shall make their full efforts to install the Digital Display System as on 7/5/2008. But it does not mean that on that date, Roll Out was commenced, because, on the same day, both parties have signed the agreement. Hence, if really, the Roll Out date was the date of agreement, there would be 27 O.S.No.6475/2009 specific mention about commencement date in Ex.P.1 specifically. Furthermore, there were several pre- conditions to commence Roll out date.
20. It is not in dispute that plaintiff has to obtain necessary permission/sanction from BBMP to run Digital Display System; afterwards defendant has to obtain necessary permission from police authorities and plaintiff has to take necessary power supply form BESCOM. These are the 3 important pre-conditions which both parties have to fulfill to commence the Digital Display System.
21. Installation, Installation date and Installation period are also defined in Ex.P.1. They read as follows:-
"Installation" shall mean the design, work and infrastructure as listed in Annexure "D" hereto that would be required to be carried out by Doohm at the "Blue Nile Advertising Pvt Ltd.,"
Facilities/Facilities/Buildings(s) for the commencement of the display of AV 28 O.S.No.6475/2009 Content and Advertisements at the display units.
"Installation Date" shall mean the date on which "Blue Nile Advertising Pvt. Ltd.," grants to Doohm access to the "Blue Nile Advertising Pvt. Ltd.,"
Facilities/Buildings(s) for the purpose of Installation.
"Installation Period" shall mean the period starting with the Installation Date till Roll out date.
22. According to 5th Clause of this agreement, prior to commencement of installation, "Blue Nile Advertising Pvt. Ltd.," (plaintiff) to provide to DOOHM (defendant No.2) adequate documentary proof of having obtained necessary permission from BBMP for converting the "Hoarding" space to "LED Screen" space. It further reveals that 90 days period was given for installation to defendant to enable defendant to commence and to complete the installation.
23. It is the contention of plaintiff that after agreement between parties, the defendant has to pay rent from 29 O.S.No.6475/2009 August 2008 because 90 days period was installation period from Roll Out date and according to plaintiff, the Roll out date is 7.5.08. However, it is the contention of defendant that this installation period commences only after plaintiff obtained necessary permission from BBMP and other authorities.
24. It is not in dispute that plaintiff has obtained necessary permission from BBMP. Under this document, permission was granted to install LED screen at property No.29. However, the agreement between plaintiff and defendant is pertaining to property No.28. Hence, defendant called for clarification. It is to be noted here that the property Nos.28 and 29 are given to the same building for 2 different floors. Hence, as per the request of defendant, clarification was obtained from BBMP as per Ex.P.2 on 16/6/2008. Afterwards, plaintiff has written letter dtd:17/6/2008 as per Ex.P.3 to defendant stating that it has already obtained permission from BBMP and requested defendant to install LED at the earliest. 30 O.S.No.6475/2009
25. Afterwards, on 9/10-07-2008, ACP, Traffic, Bangalore City has permitted to display LED screen at the property of plaintiff as per Ex.P.4. These facts were clearly admitted by P.W.1 in his cross-examination. Thus, defendant's counsel vehemently submitted arguments that only after obtaining permission from police authorities on 9/7/2008, the defendant would have commenced installation work.
26. In the cross-examination, P.W.1 admitted that as per the agreement, they (plaintiff) have to take permission from statutory authorities like BBMP, police authorities, BESCOM. It is admitted that they have given permission to put up LED screen on 16/6/2008 and obtained permission from police authorities on 9/7/2008. Permission for electrical supply to the LED screen was taken on 10/9/2008 in the name of Rajan Sharma; for the purpose of welding LED TV, electricity supply was obtained on 25/10/2008.
27. P.W.1 admitted that it was the duty of the plaintiff to take permission for supply of LED screen, the cost of 31 O.S.No.6475/2009 power was to be payable by the defendant. Even D.W.2 admitted that they have to pay the cost of the power supply. Even in the agreement at Page No.6, it is stated that plaintiff has to provide strategic locations with required electricity power supply, connection, back-up power and power points for each of the Digital Display System terminals installed by DOOHM; the cost of power installation will be borne by DOOHM. Thus, the plaintiff has obtained power supply on 25/10/2008. Thus defendant's counsel argued that only after 25/10/2008, the installation work ought to have been commenced and it requires 90 days for completion of installation and thus, payment of rentals shall commence only 90 days after 25/10/2008 i.e., from 25/1/2009 and not earlier to it.
28. Though defendant's counsel has argued like this, there was no specific suggestion put to P.W.1 on this point. It is only suggested to P.W.1 that defendant is not liable to pay rental from August 2008, which was denied by P.W.1.
32 O.S.No.6475/2009
29. Plaintiff's counsel vehemently submitted arguments that defendants are liable to pay rentals from August 2008; they agreed for it; they have received invoices raised by plaintiff from 6/8/2008 onwards and also made part payment when plaintiff insisted for the payment. They have also sent e-mail that they are in financial stringency and they will make payment in future. These facts clearly establish that defendants have admitted that they have agreed to make payment of rentals from August 2008 onwards.
30. To substantiate the above contention of plaintiff, plaintiff has produced invoices as per Ex.P.6 to Ex.P.13. They are raised for the period from 6/8/2008 to 31/3/2009. All these invoices were received by D.W.2 and in his cross-examination; he categorically admitted the receipt of these documents and his signature on those documents.
31. Defendant No.1 contended that due to disruption of electrical supply, orders given by its customers were 33 O.S.No.6475/2009 cancelled by them and thus, it sustained huge loss. In this regard, defendants have produced Ex.D.5 to Ex.D.16. Ex.D.5, Ex.D.7, Ex.D.9, Ex.D.11, Ex.D.13, Ex.D.14 and Ex.D.16 are the different orders given by different customers of defendant to defendant No.1 i.e., Salem Kitchen, R.K.Township, S.S.Polytech Concrete Products, Vinyaas Interiors Pvt.Ltd., BSNL, Film Consepts Pvt. Ltd., and Syndicate Bank. These customers of defendants have given orders to defendant to display their advertisements at Doohm Digital Display System at Commercial Street, Bangalore i.e., at suit schedule property for several periods on different dates i.e., on 20/12/2008, 7/1/2009, 10/2/2009, 27/4/2009, 29/4/2009, 23/5/2009 and 22/7/2009. However, almost all of them have cancelled the orders before completion of the period, because of disruption in power supply and improper working of LED screen. This fact is evidenced by Ex.D.6, Ex.D.8, Ex.D.10 and Ex.D.12. Under these 4 documents, Salem Kitchen, R.K.Township, S.S.Polytech Concrete Products and Vinyaas Interiors Pvt.Ltd., have cancelled the orders given by them 34 O.S.No.6475/2009 on different dates. However, to substantiate these documents, defendants have not made efforts to examine the persons who had written those letters to defendant No.1 & 2.
32. As per Ex.P.1, plaintiff has to provide space for generator. In Ex.P.1 at page No.6, it is stated that plaintiff has to provide back up power. In Ex.P.1 at Annexure-D, defendant has to install equipments mentioned in the annexure-D, which includes generator. As per Annexure-E, plaintiff has to provide space for installing generator.
33. It is an admitted fact that the generator is not installed in the property of plaintiff. After filing of suit, this court has issued suit summons and emergent notice of I.A. to defendants. After appearance of defendants, this court has passed orders on 18/1/2010 that plaintiff is directed to provide space for fixing the back up generator to provide electricity(expenses are to be incurred by the defendant) within the period of 15 days, after providing 35 O.S.No.6475/2009 the space, the plaintiff has to furnish a Memo to the court; from that day within three months, the defendant shall deposit rent agreed from October 2008 till the date in court; and in case, if the defendant fails to do so, the defendant is directed to remove the LED screen after three months.
34. After passing orders on 18/1/2010, on 2/2/2010, plaintiff filed memo with sketch of structural detail for the erection of DG Generator Set. Afterwards, defendant has not installed generator set at the space provided by plaintiff. D.W.2 admitted that as per order dated 18/1/2010, plaintiff filed memo before court on 2/2/2010 but he has not deposited the agreed rent from October 2008 before court.
35. In this regard, in the cross-examination, D.W.2 has deposed that though plaintiff provided space as per order dated 18/1/2010, said space was not in accordance with their agreement as per Ex.P.1; as per the agreement, plaintiff ought to have provided space on terrace i.e., on 36 O.S.No.6475/2009 the back side of the display board, but, plaintiff provided the space on back side of their building at the bottom. Thus, his contention is that plaintiff has not provided the proper space for fixing generator and plaintiff ought to have provided space for generator at the terrace on the back side of display board.
36. D.W.2 in the further cross-examination has specifically deposed that as per Annexure-F, they have shown the space at terrace as the space to keep generator on terrace behind the display board.
37. Annexure-F is the display location placement wherein it is mentioned as "letters, writings, designs and approvals of display placement." It does not show that the drawing pertaining to back up generator. D.W.2 explained in his cross-examination that in Annexure-F, it is noted about the designs and approvals of display placements and they have provided designs and display placement which clarify this point and they are with plaintiff. However, defendants have not made any efforts to produce those designs and 37 O.S.No.6475/2009 not made efforts to direct plaintiff to produce them. Hence, defendant Nos.1 & 2 have not proved their said contention.
38. The contention of plaintiff is that plaintiff has provided the space for generator, but defendant has not utilized it and not kept the generator. It is to be noted here that defendant has not written any letter or e-mail to plaintiff demanding space to keep back up generator.
39. Plaintiff has produced e-mail conversation between D.W.1 and P.W.1 dtd:13/7/2009 at 3.03 p.m. as per Ex.P.24 i.e., D.W.1 had sent the E-mail to P.W.1. He has also produced certificate required under S.65-B of Indian Evidence Act for this e-mail conversation.
40. According to this e-mail, D.W.1 has sent this e-mail to plaintiff and also sent its copy to D.W.2 and others. He has stated in it as follows:-
"Dear Mr.Deepak, Sub:- LED display unit in your premises - rented by us.
38 O.S.No.6475/2009 I am so sorry that I could not send any communication to you earlier as informed. This is because of my non availability in the station. I have resumed duty only this afternoon and I shall take up the matter on top priority and shall revert to you before Wednesday. Till such time kindly bear with me.
With regards."
41. On perusal of this e-mail, it is clear that it is the defendant who has committed breach of the agreement. However, D.W.1 in the cross-examination has not admitted that he sent this e-mail to the plaintiff. But, he has deposed that his e-mail ID is [email protected]. Plaintiff has produced Ex.P.24 which was sent from said e-mail I.D. only. D.W.2 admitted that he has received copy of this e-mail and it was sent by D.W.1 to plaintiff. Under these circumstances, when plaintiff establishes these facts, D.W.1 has to establish that this Ex.P.24 was not sent by him. D.W.1 has not produced materials to disprove it. 39 O.S.No.6475/2009 Hence, contents of Ex.P.24 could be looked into. On perusal of contents of Ex.P.24, is clear that it was sent by D.W.1. Under this e-mail, D.W.1 categorically stated that delay was caused from their side and he will set it right.
42. Ex.P.25 and Ex.P.26 are e-mails produced by P.W.1 stating that they were sent from Gomathi Nayagam (D.W.1) at e-mail [email protected]. D.W.1 denied that it is his e-mail I.D. According to Ex.P.25, D.W.1 has sent e-mail dtd:20/7/2009 at 11.54 a.m. In the said e- mail he has referred the earlier e-mail as per Ex.P.24. According to Ex.P.26, D.W.1 has sent e-mail dtd:7/8/2009 at 10.14 a.m.
43. Though plaintiff has produced e-mail print outs as per Ex.P.25 & Ex.P.26, plaintiff has not cross-examined D.W.1 on these 2 e-mails and not suggested to D.W.1 that they were sent by him. Further D.W.1 denied that said e-mail [email protected] ID is his e-mail ID. Hence, the contents of these 2 e-mails cannot be looked in to.
40 O.S.No.6475/2009
44. Plaintiff has produced Ex.P.29-TDS Traces. It reveals that defendant has deducted TDS for the transaction dated 30/9/2008 and date of Booking was on 22/7/2009, 10/1/20015 and 22/7/2009. TDS amount was deposited amounting to Rs.79,961/- each on 22/7/2009 and on 10/1/2015, but for 3rd transaction, it was shown as
-79,961/-. That means, this amount was not debited and even in the amount paid column, it is shown as
-3,52,872/-. Thus, defendant has not paid its rentals.
45. As already discussed above, defendant was liable to pay the rentals only after completion of 90 days of Installation period. To commence installation, plaintiff ought to have obtained necessary permission from BBMP and it was obtained on 22/6/2008 and the Police Commissioner's permission was obtained on 9/7/2008.
46. Plaintiff has produced Ex.P.22 and Ex.P.23 - E-mail print outs pertaining to defendant displaying its advertisements in plaintiff's property. They reveal that on 26/10/2008 and also on 30/10/2008 defendant has 41 O.S.No.6475/2009 published the advertisement in LED Display screen in the property of plaintiff. If really, defendant had commenced the display even prior to these dates, plaintiff would have produced the earlier display documents, but it produced only documents dtd:26/10/2008 and 30/10/2008.
47. The permission from police authorities was obtained on 9/7/2008. Plaintiff has not produced any evidence before this court to show that what the Roll Out date was. Even defendants also not produced the exact Roll Out date in their written statement or in evidence.
48. According to Ex.P.29-Traces, for the transaction date 30/9/2008, on 27/2/2009 and on 10/1/2015, defendant No.1 has deducted the tax at source of Rs.79,961/- each, and it is shown that it has paid the amount Rs.3,52,872/- on two occasions.
49. Ex.P.29-TDS Traces does not reveal that from August 2008, TDS was deducted. As already discussed above, it only reveals transaction date as 30/9/2008. If 42 O.S.No.6475/2009 we consider that TDS traces would be given for every quarter, then it should be for the months July, August and September. But, even according to plaintiff, it was commenced only from August 2008 and not from July 2008. Hence, this TDS traces is not helpful for plaintiff to prove that the defendants have deducted TDS for the month of August 2008.
50. It is an admitted fact that defendant No.1 has paid the advance amount of Rs.11,25,000/- in two installments. According to plaintiff, subsequently, when plaintiff insisted for rentals, defendants have paid Rs.3,00,000/-during January 2009 and Rs.2,00,000/- during February 2009. Defendants have not disputed the payments of this Rs.5,00,000/-. But they have not mentioned the dates of such payments. Plaintiff has obtained permission from BESCOM only on 25/10/2008 for wielding LED screen. Hence, the coupled reading of all these acts i.e., dates of taking permission from different authorities, the plaintiff produced display of 43 O.S.No.6475/2009 advertisements by defendant on its property dtd:26/10/2008 and 30/10/2008 made it clear that the defendant commenced its work only from 26/10/2008. Hence, this court holds that defendant is liable to pay rentals only from 26/10/2008 onwards and not earlier to that date.
51. Plaintiff's counsel vehemently argued that the Traces produced by him as per Ex.P.29 made it very clear that the defendant No.1 has deducted TDS for August 2008 and defendant No.1 has received invoices as per Ex.P.5 to Ex.P.13 from 6th August 2008 onwards and thus, defendants admitted these documents and hence, the burden shifts from plaintiff to defendants and defendants have not discharged the onus and hence, plaintiff is entitled to claim rentals from 6/8/2008 onwards.
52. In this regard, plaintiff's counsel relied on the citation reported in AIR 2000 SC 1203 in "Subhra Mukherjee and another v/s Bharat Coking Coal 44 O.S.No.6475/2009 Ltd., and others", wherein, their Lordships held as under:-
"(B) Evidence Act(1 of 1872), S.101 -
Burden of proof - Issue whether a transaction is bona fide and genuine one or is sham and bogus - Party alleging it to be sham need not take burden of proof until transaction is proved to be bona fide by opposite party."
53. Learned counsel for plaintiff relied on another citation reported in AIR 2006 SC 1971 in "Anil Rishi v/s Gurbaksh Singh" wherein, their Lordships held as under:-
"(A) Evidence Act (1 of 1872), Ss.101, 102, 111 - Burden of proof - Suit for declaration that sale deed was forged, fabricated - Defendant disputing allegations - Reframing issue as to whether deed is valid and thereby putting burden of proof on defendant - Not proper in absence of proof of fiduciary relationship."
54. In the above two citations, their Lordships held that if a person took contention regarding fraud or document is not genuine, then, it is his burden to establish this fact. In the instant case, as already 45 O.S.No.6475/2009 discussed above, though plaintiff raised invoice, defendant No.1 received them and though plaintiff has produced TDS Traces as per Ex.P.29; nobody raised objections regarding genuineness of Ex.P..29. Furthermore, from the documents produced by both parties i.e., Ex.P.22 and Ex.P.23 and admission of P.W.1 in the cross-examination regarding dates of permission obtained from BBMP, police authorities and BESCOM, it is clear that the defendant No.1commenced installation only after obtaining permission from BBMP and police authorities and he actually commenced the Advertisements display only after obtaining power supply for wielding LED Screen on 25/10/2008 and thus, defendant No.1 has discharged the onus only from the documents of plaintiff itself and from the evidence of P.W.1 itself. Hence, this court holds that plaintiff is entitled for rents only from 26/10/2008 onwards. Hence, the above said citations are not helpful to plaintiff.
55. It is an admitted fact that plaintiff terminated the agreement with defendant by issuing notice as per 46 O.S.No.6475/2009 Ex.P.14 dtd:15/5/2009. In the said legal notice, plaintiff has stated that defendant No.1 has stopped display of advertisement and switched off all the LED system and also committed breach of the agreement an thus, plaintiff terminated the agreement dtd:7/5/2008. Defendant has given reply to this notice dtd:9/6/2009 that they were not permitted to take out the LED screen and installation in the property of plaintiff; for which on 12/6/2009, plaintiff has given reply that they have not prevented defendant and further stated no objection to remove the entire LED screen. Plaintiff has also given detailed rejoinder dtd:24/6/2009.
56. Afterwards, this suit is filed on 9/10/2009. After filing this suit, as discussed above, on 18/1/2010, this court passed an order directing plaintiff to provide space for generator and then directed defendant to pay rents from October 2008; otherwise to remove the LED screen.
57. In this regard, defendant has filed memo on 26/5/2010 that within 20 days, he will remove the LED 47 O.S.No.6475/2009 screen. Thus, it is clear that up to 26/5/2010, defendants have not removed the LED screen though they stopped displaying in the said screen from May 2009 itself.
58. Defendant No.1 has filed memo on 17/6/2010 that as per Memo of Under Taking dtd:26/5/2010 given by defendant, defendant company has dismantled/removed the LED screen erected in the suit schedule property. He has not mentioned in this memo the date of removal of LED screen. Hence, it is to be presumed that he removed it atleast on the previous day. Hence, plaintiff is entitled for damages up to 16/6/2010.
59. By passing orders on 18/1/2010 itself, this court specified defendants to pay rents only from October 2008. All these facts made it very clear that plaintiff is entitled for rents only from 26/10/2008 till May 2009. Thus, plaintiff is entitled for rents for 7 months at the rate of Rs.3,75,000/- p.m. i.e., Rs.26,25,000/-. Admittedly, out of this amount, defendant No.1 has paid Rs.16,25,000/-. Hence, plaintiff is entitled for 48 O.S.No.6475/2009 Rs.10,00,000/- and not Rs.25,48,439/- as prayed in the plaint.
60. Plaintiff is entitled for damages from June 2009 to May 2010 for which period defendant has not removed the LED screen.
61. Plaintiff pleads damages at Rs.7,50,000/- p.m., but restricted its claim only at Rs.3,75,000/- p.m. which was agreed rate of rent. However, it is to be noted here that since from May 2009, defendant has not utilized the property and not displayed any advertisements and has not got any profits from the property. Even then, as defendant has not removed the LED screen or other equipments; hence, definitely, plaintiff sustained loss, because he could have fixed other hoardings or could have let out this property to third parties and would get income. However, it is not certain that whether plaintiff could get any hoardings or other persons to let oout the space for display of the advertisements and what would be the rent plaintiff would get from third parties. Hence, 49 O.S.No.6475/2009 this court holds that plaintiff is entitled for damages at Rs.1,00,000/- from June 2009 till defendant No.1 removed LED screen i.e., up to 16/6/2010.
62. Plaintiff claims Rs.3,20,000/- towards facilitating defendant for installation of LED/Digital Display System. However, plaintiff has not produced document to show that what was the amount he spent for facilitating defendants to install LED screen/Digital Display System. Hence, plaintiff is not entitled for Rs.3,20,000/-.
63. Plaintiff contended that it has paid the electricity charges of Rs.34,579/- which defendants ought to pay. It is an admitted fact that defendant No.1 agreed to pay the electricity consumption charges. It is the contention of plaintiff that defendant No.1 has not paid the said amount and hence, BESCOM authorities have disconnected the electricity facility to the entire property and hence, plaintiff has paid the said amount and get electricity facility restored to his property. Though it pleaded so, plaintiff has not produced the bill/receipt or 50 O.S.No.6475/2009 electricity disconnection order or any other documents to prove the same. Hence, plaintiff is not entitled for recovery of said amount from defendants.
64. Plaintiff claims Rs.20,000/- towards legal notice charges. Plaintiff got issued legal notices as per Ex.P.14 and Ex.P.17 to defendant No.1 and claims legal notice charges of Rs.10,000/- each in those notices. Hence, plaintiff is entitled for legal notice charges of Rs.20,000/-.
65. Defendant No.1 took contention in the written statement that it is the plaintiff who has committed breach of the agreement and not defendants. 1st defendant's main contention is that plaintiff has not provided space for generator and it caused disruption of electric supply to LED screen and hence, it lost many of its customers. In this regard, as already discussed above, defendants mainly relied upon Ex.D.5 to Ex.D.16-Release orders and cancellation orders. Except producing these documents, defendant No.1 has not made any efforts to examine any one of these persons who cancelled the 51 O.S.No.6475/2009 orders given to 1st defendant. As already state above, defendant No.1 has not written letter/e-mail or legal notice demanding plaintiff to provide space for generator. Hence, this court holds that defendant No.1 failed to prove that plaintiff has committed breach of the agreement.
66. For the above reasons, this court holds that plaintiff is entitled for recovery of Rs.10,00,000/- towards arrears of rents, Rs.1,00,000/-p.m. from June 2009 till 16/6/2010 i.e., Rs.12,50,000/- towards damages and Rs.20,000/- towards legal notice charges. Accordingly, issue No.1 and additional issue No.1 (framed on 18/12/2010) are answered partly in affirmative and issue Nos.2 and 3 are answered in negative.
ADDITIONAL ISSUE No.2 (Framed on 18/12/2010)
67. Defendant has claimed Rs.15,00,000/- as counter- claim i.e., loss sustained by defendant, because of the breach of the agreement committee by plaintiff. In this regard, defendant has paid court fee of Rs.87,150/-. The 52 O.S.No.6475/2009 said payment of court fee on this counter-claim is in accordance with S.21 of the Karnataka Court-Fees and Suits Valuation Act and thus, sufficient. Hence, this court holds that the court fee paid by defendant on counter- claim is sufficient. Accordingly, additional issue No.2 framed on 18/12/2010 is answered in negative.
ADDITIONAL ISSUE (Framed on 3/9/2012)
68. At the inception, plaintiff has filed the suit only against defendant No.1. After filing the suit, plaintiff amended the suit and impleaded defendant Nos.2 to 5. Defendant No.2 is M/s.Doohm Network Pvt.Ltd. According to Ex.P.1-agreement, the agreement was executed between defendant-M/s.Omini Visual Media Pvt.Ltd., and plaintiff-M/s.Blue Nile Advertising Pvt.Ltd. In the agreement it is specifically stated that M/s.Doohm Network Pvt.Ltd., is engaged in the business of providing "Digital out of home media services". Thus, defendant No.2 was also indirectly included in the agreement 53 O.S.No.6475/2009 between plaintiff and defendant No.1. Hence, defendant No.2 is also liable to pay the suit claim.
69. Defendant No.3 is a different company incorporated as per the provisions of Companies Act. Merely because some of the directors of the defendant No.3 company are also the directors in defendant No.1 company, it cannot be said that defendant No.3 company is also liable to pay the suit claim. Merely because, some payments to plaintiff - i.e., Rs.5,00,000/- during January and February 2009, it cannot be held that defendant No.3 is also liable to pay suit claim in the absence of agreement between plaintiff and defendant No.3.
70. If defendant No.1 Company is taken over by defendant No.3 company, then arguments of learned counsel for plaintiff in that regard would have been accepted. But as it is, plaintiff has not produced any materials to show that defendant No.1 Company is merged with defendant No.3 Company. The Articles of Association and Memorandum of Association produced by 54 O.S.No.6475/2009 plaintiff are pertaining to defendant No.3 company and they do not reveal that 1st defendant company is merged with 3rd defendant company. Hence, this court holds that 3rd defendant company is not liable to pay the suit claim.
71. Defendant No.4 & 5 are directors in defendant No.1 & 3 Company. The agreement is between plaintiff and defendant No.1 & 2 - Companies and not with any individual persons. Hence, defendant No.4 & 5 behind individual persons are not liable to pay suit claim. They cannot be personally held liable to pay suit claim.
72. The above discussion reveals that defendant Nos.1 and 2 are jointly and severally liable to pay the suit claim and not defendant Nos.3 to 5. Accordingly, this additional issue (framed on 3/9/2012) is answered partly in affirmative.
ISSUE No.4
73. In view of findings on issue Nos.1 to 3 and additional issue Nos.1 and 2 framed on 18/12/2010 and additional issue framed on 3/9/2012, this court holds that plaintiff is 55 O.S.No.6475/2009 entitled for recovery of Rs.10,00,000/- towards arrears of rent and Rs.12,50,000/- towards damages and Rs.20,000/- towards legal notice charges. Plaintiff claims interest at 16% p.a. on the suit claim. However, as there is no agreement between parties regarding interest, plaintiff is not entitled for interest at 16% p.a. But, if plaintiff had keep this amount in any of the nationalized banks, it would get interest atleast at 10% p.a. Hence, plaintiff is entitled for interest at 10% p.a. on this amount of Rs.22,70,000/- from the date of suit till realization. Accordingly, issue No.4 is answered partly in affirmative.
ISSUE No.5 & ADDITIONAL ISSUE NO.3 (FRAMED ON 18/12/2010)
74. In view of findings on issue Nos.1 to 4 and additional issue Nos.1 and 2 framed on 18/12/2010 and additional issue framed on 3/9/2012, this court proceeds to pass the following:-
56 O.S.No.6475/2009
ORDER Suit is partly decreed with proportionate costs for a sum of Rs.22,70,000/- with current and future interest at 10% p.a. from the date of suit till realization of amount against defendant Nos.1 and 2.
Defendant Nos.1 and 2 are jointly and severally liable to pay the suit claim amount.
Suit against defendant Nos.3 to 5 is dismissed. Counter-claim filed by defendant No.1 is rejected. Ex.P.1 agreement between plaintiff and defendant No.1 is impounded as per S.33 of the Karnataka Stamp Act and refer the same to the concerned Special Deputy Commissioner for collection of duty and penalty as per S.37(2) of the Karnataka Stamp Act.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in the open Court on this the 26th day of November, 2015).
(K.B.GEETHA) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Deepak Sharma
b) Defendants' side :
D.W.1 - C.Gomathi Nayagam D.W.2 - N.Shankar 57 O.S.No.6475/2009 II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Digital Display System agreement dtd: 7/5/2008 along with Annexures A to J Ex.P.2 Clarification given by BBMP dtd:
16/6/2008 Ex.P.3 Copy of the plaintiff's letter dtd:
17/6/2008
Ex.P.4 Permission Letter dtd:9/7/2008
from A.C.P.
Ex.P.5 Copy of the Invoice No.26
Ex.P.6 Copy of the Invoice No.27
Ex.P.7 Copy of the Invoice No.28
Ex.P.8 Copy of the Invoice No.29
Ex.P.9 Copy of the Invoice No.30
Ex.P.10 Copy of the Invoice No.31
Ex.P.11 Copy of the Invoice No.34
Ex.P.12 Copy of the Invoice No.35
Ex.P.13 Copy of the Invoice No.37
Ex.P.14 Copy of the legal notice
dtd:15/5/2009
Ex.P.15 Reply notice dtd: 9/6/2009
Ex.P.16 Copy of the interim rejoinder
dtd:12/6/2009
Ex.P.17 Copy of the interim rejoinder
dtd:24/6/2009
Ex.P.18 Copy of e-mail dtd: 22/9/2009
Ex.P.19 Copy of e-mail dtd: 20/7/2009
Ex.P.20 Copy of the e-mail dtd: 7/8/2009
Ex.P.21 Copy of resolution passed by Board
of Directors of plaintiff company
Ex.P.22 to 5 e-mails dtd: 9/2/2009, 9/4/2009,
Ex.P.26 13/7/2009, 20/7/2009 and
7/8/2009
Ex.P.27 Memorandum of Association &
Articles of Association
58 O.S.No.6475/2009
Ex.P.28 Certificate u/s 65 B of Indian
Evidence Act
Ex.P.29 & TDS certificate along with
Ex.P.30 certificate u/s 65 B of Indian
Evidence Act
Ex.P.31 Letter written by OAP to plaintiff
dtd: 1/3/2009
(b) Defendants' side : -
Ex.D.1 Authorization letter
Ex.D.2 Resignation letter
Ex.D.3 Board of Resolution
Ex.D.4 Form No.32
Ex.D.5 to 12 original cancellation orders
Ex.D.16 issued by defendant
Ex.D.17 Authorization letter
(K.B.GEETHA)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
GVU/-